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From a Legal Perspective, Should Terri Schiavo's Feeding Tube Have Been Removed?

Rebecca Dresser, JD, Daniel Noyes Kirby Professor of Law and Professor of Ethics in Medicine at Washington University Law School, in a May-June 2005 article published in the Hastings Center Report, entitled "Schiavo's Legacy: The Need for an Objective Standard," explained:

"Since Terri Schiavo had no living will, the Florida judges applied the 'substituted judgment' standard to reach a decision about her care. This standard aims to produce the decision the patient would make if able... The courts found that Ms. Schiavo's former statements constituted clear and convincing evidence that she would refuse the medical nutrition and hydration prolonging her life.

Yet the courts also recognized that the evidence was not all that strong...

The testimony about Ms. Schiavo's previous statements was general enough to raise doubts about whether she would indeed have refused nutrition and hydration. And years after her brain injury, with her family so divided, could anyone really know what she would decide if she were, in the language of the Quinlan court, 'miraculously lucid for an interval...and perceptive of her irreversible condition'?"

"In the more than seven years that the Terri Schiavo case has been winding through the Florida state and federal court systems, at least 10 judges have looked at the factual and legal issues surrounding the question of whether the severely brain-damaged woman's feeding tube should be removed. Now, with the feeding tube removed on order from a state court judge and federal courts thus far refusing to intervene, the case has come down to very narrow legal points...

Experts say...the question is not about what Terri wanted, nor what Michael Schiavo wants, what the Schindlers want, what Congress wants or what the president of the United States wants. Like the lower federal courts that have already ruled in this case, the judicial inquiry is confined to whether Terri's 'due process was denied,' explains Erwin Chemerinsky, a professor at Duke University School of Law.

In other words, the issue is whether the courts have given due consideration to all the issues in the case."

Mar. 24, 2005

From a Legal Perspective, Should Terri Schiavo's Feeding Tube Have Been Removed?

"The Schindlers [Terri Schiavo's parents] lost their case and their cause [to reinsert Terri Schiavo's feeding tube]...because in the end they were making claims the legal system has never been able or willing to recognize. They lost because they long ago ran out of good arguments to make--those arguments having been reasonably rejected by state judge after judge--and thus were left with only lame ones...

Schiavo's parents lost appeal after appeal specifically because they were asking the federal courts to declare that their constitutional rights had been violated by the Florida state court rulings in the case. They were arguing, in other words, thanks in part to their custom-made congressional legislation, that the federal Constitution gave them the right as losers in state court to get a new, full-blown trial in federal court.

If you ponder that notion you will realize just how astounding it is. If accepted, it would have meant the end of state courts as we know them. No decision at the state level ever would be final, because every losing litigant at the state court level would be able to walk into federal court and declare a federal constitutional violation...

And it is no wonder that the conservative U.S. Supreme Court decided for a fourth time to stay out of the case. This harsh reality won't make it any easier for the Schindlers, but government cannot run on passion or emotion or sympathy. As the U.S. 11th Circuit Court of Appeals wrote: 'There is no denying the absolute tragedy that has befallen Mrs. Schiavo... In the end, and no matter how much we wish Mrs. Schiavo had never suffered such a horrible accident, we are a nation of laws.'"

Joshua Perry, JD, Assistant Professor at Vanderbilt University Medical Center, Larry Churchill, PhD, Professor of Medical Ethics at Vanderbilt and Howard Kirshner, MD, Professor of Neurology at Vanderbilt argue in their article "The Terri Schiavo Case: Legal, Ethical, and Medical Perspectives" that appeared in the Nov. 15, 2005 issue of the Annals of Internal Medicine:

"In our opinion, the law did not fail Terri Schiavo. In fact, no end-of-life guardianship case in U.S. history has generated as much high quality evidence, judicial attention, or legal scrutiny as the Terri Schiavo case...

The Florida guardianship was clear, and the law was followed. The judiciary was charged with 2 questions: 1) What was Terri Schiavo's medical condition? 2)In such a condition, what would she choose to do? In the midst of an intense and intractable family dispute, amid dizzing media attention and unprecedented political intervention, the judicial process produced 2 answers. The process and the resulting answers were reviewed repeatedly by cautious, nonpartisan judges who demonstrated restraint and care in adjudicating Mrs. Schiavo's case pursuant to her individual liberty and privacy interests. "

The American Civil Liberties Union of Florida argued in its Oct. 29, 2003 Petitioner's Brief in the Terri Schiavo case:

"By authorizing the Governor to compel the surgical re-insertion of her feeding tube, the Florida legislature has trampled upon Mrs. Schiavo's constitutional right to control her own medical treatment, specifically, her right to refuse unwanted artificial life support. This right is firmly grounded in both the Florida and federal constitutions.

Under Article I, Section 23 of the Florida Constitution, '[e]very natural person has the right to be let alone and free from governmental intrusion into the person's private life.'... This constitutional right of privacy, which exceeds analogous protections under federal constitutional law, includes the right to self-determination with respect to medical treatment, that is, to decide for oneself whether or not to receive such treatment...

The constitutionally protected right to choose or reject medical treatment is not lost by virtue of physical or mental incapacity or incompetence. When the patient can no longer speak, the right may be exercised by a proxy, such as a close family member or friend, upon clear and convincing evidence. A written declaration is presumptively clear and convincing evidence of the patient's wishes. Where, however, a person has not left a written declaration, oral declarations and evidence may constitute clear and convincing evidence of the patient's wishes; the surrogate must make the medical treatment choice that the patient, if competent, would have made...

The Florida legislature has also codified the right to refuse treatment in Chapter 765 of the Florida Statutes. It provides that a health care surrogate or proxy may effectuate the wishes of an incapacitated patient--that is, a patient currently unable to communicate her health care decision--regarding treatment, including a wish to refuse life-prolonging procedures such as artificial nutrition and hydration. The incapacitated patient's right to have her wishes carried out applies even where she has not executed a living will or other written advance directive for health care."

"Among many other violations of her due process rights, Terri Schiavo has never been allowed by the primary judge in her case--Florida Circuit Judge George Greer, whose conclusions have been robotically upheld by all the courts above him--to have her own lawyer represent her...

Months ago, in discussing this case with ACLU executive director Anthony Romero, and later reading ACLU statements, I saw no sign that this bastion of the Bill of Rights has ever examined the facts concerning the egregious conflicts of interest of her husband and guardian Michael Schiavo, who has been living with another woman for years, with whom he has two children, and has violated a long list of his legal responsibilities as her guardian, some of them directly preventing her chances for improvement. Judge Greer has ignored all of them...

As David Gibbs, the lawyer for Terri's parents, has pointed out, there has been a manifest need for a new federal, Fourteenth Amendment review of the case because Terri's death sentence has been based on seven years of 'fatally flawed' state court findings--all based on the invincible neglect of elementary due process by Judge George Greer...

And keep in mind from the Ralph Nader-Wesley Smith report: 'The courts . . . have [also] ordered that no attempts be made to provide her water or food by mouth. Terri swallows her own saliva. Spoon feeding is not medical treatment. This outrageous order proves that the courts are not merely permitting medical treatment to be withheld, they have ordered her to be made dead.'

In this country, even condemned serial killers are not executed in this way."

Harriet Johnson, JD, Disability-Rights Lawyer, argued in her Mar. 23, 2005 article, "Not Dead at All: Why Congress Was Right to Stick Up for Terri Schiavo," published in Slate:

"Ms. Schiavo, like all people, incapacitated or not, has a federal constitutional right not to be deprived of her life without due process of law.

In addition to the rights all people enjoy, Ms. Schiavo has a statutory right under the Americans With Disabilities Act (ADA) not to be treated differently because of her disability. Obviously, Florida law would not allow a husband to kill a nondisabled wife by starvation and dehydration; killing is not ordinarily considered a private family concern or a matter of choice. It is Ms. Schiavo's disability that makes her killing different in the eyes of the Florida courts...

While we should not assume that disability prejudice tainted the Florida courts, we cannot reasonably assume that it did not.

...The legislation enabling Ms. Schiavo's parents to sue did not take sides in the so-called culture wars. It did not dictate that Ms. Schiavo be fed. It simply created a procedure whereby the federal courts could decide whether Ms. Schiavo's federally protected rights have been violated.

In the Senate, a key supporter of a federal remedy was Iowa Sen. Tom Harkin, a progressive Democrat and longtime friend of labor and civil rights, including disability rights. Harkin told reporters, 'There are a lot of people in the shadows, all over this country, who are incapacitated because of a disability'...

I hope against hope that I will never be one of those people in the shadows, that I will always, one way or another, be able to make my wishes known... But if it happens otherwise, I hope whoever is appointed to speak for me will be subject to legal constraints. Even if my guardian thinks I'd be better off dead--even if I think so myself--I hope to live and die in a world that recognizes that killing, even of people with the most severe disabilities, is a matter of more than private concern."

Not Dead Yet, a disability rights organization, filed an amicus brief in Bush v. Schiavo on July 12, 2004 that argued:

"A close examination of the issues shows that Ms. Schiavo's fate is intertwined with that of many people with disabilities who must rely on surrogates. If the legal standard of proof in cases involving termination of life support is watered down to the point where Ms. Schiavo's 'quality of life'--as determined by others--justifies her death, then one cannot distinguish Ms. Schiavo from anyone else who is 'incompetent,' including thousands who cannot speak due to developmental or physical disabilities. It is naïve to believe such attitudes would not be used to justify the death of people with severe disabilities if the opportunity arose...

The lower court also found that HB 35-E [legislation that granted Jeb Bush the power to re-insert Terri Schiavo's feeding tube] infringed on Ms. Schiavo's right to privacy, specifically her right to refuse medical treatment. This finding ignores Ms. Schiavo's equally-fundamental right not to have medical treatment--particularly life-sustaining treatment--withdrawn by a third party absent clear and convincing evidence that Ms. Schiavo would have made that decision herself. "